Municipal Corporation of Delhi Vs.
Jagdish Lal Son of Radhakishan & ANR [1969] INSC 142 (27 May 1969)
27/05/1969 RAMASWAMI, V.
RAMASWAMI, V.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1970 AIR 7 1970 SCR (1) 579 1969
SCC (3) 389
CITATOR INFO:
D 1972 SC1407 (20)
ACT:
Prevention of Food Adulteration Act 1964 (37
of 1964), s. 20--Municipality authorizing Municipal Prosecutor to file
complaint on its behalf-Accused acquitted-Municipality whether 'complainant'
within meaning of s. 417(3) of Code of Civil Procedure-Whether competent to
file application for special leave to appeal.
HEADNOTE:
A complaint under s. 7 read with s. 16 of the
Prevention of Food Adulteration Act, 1964 was filed against the respondent. It
was filed by the Municipal Prosecutor who had been authorised to file such
complaints by a resolution passed by the appellant corporation under s. 20 of
the aforesaid Act. On the respondent being acquitted the appellant corporation
filed an application in the High Court for special leave to appeal under s. 417
of the Code of Criminal Procedure. The application was allowed. When the appeal
came up for hearing a preliminary objection was raised by the respondent that
the complaint having been filed by the Municipal Prosecutor the corporation was
not a 'complainant' within the meaning of s. 417(3) of the Code of Criminal
Procedure and therefore special leave to appeal should not have been granted.
The High Court upheld the preliminary objection and dismissed the appeal. By
special leave the corporation appealed to this Court.
HELD : (i) Under s. 476(1)(h) of the Delhi
Municipal Corporation Act the person competent to institute legal proceedings
is the Commissioner. However the present case was governed not by that
provision but by s. 20 of the Prevention of Food Adulteration Act, 1964 which
provides that a prosecution under that Act may be instituted "by the
Central Government or the State Government or a local authority or a person
authorised in this behalf, by general or special order by the Central Government
or the State Government or a local authority". Section 2(vii) of the
Prevention of Food Adulteration Act defines a "local authority" to
mean "in the case of a local area which is a municipality, the municipal
board or municipal corporation".
The Delhi Municipal Corporation was a local
authority within the meaning of s. 20, [581 H; 582 C, G-H; 584 A] (ii)The
Municipal Prosecutor had filed the complaint against the respondent under
authority given to him by the resolution of the Delhi Municipal Corporation
under s. 20 of the Prevention of Food Adulteration Act. in filing the complaint
the said prosecutor was not acting on his own personal behalf but was acting as
an agent authorised by the Delhi Municipal Corporation to file the complaint.
It must therefore be deemed in law that the Delhi Municipal Corporation was the
'complainant' in the case, for according to the Latin maxim. "One who does
an act through another is deemed in law to do it himself." [583 H; 584
C-D] Being thus the complainant in the case the appellant Corporation could
properly file the application under s. 417 of the Code of Criminal Procedure.
[Case remanded to High Court for disposal according to law.] [584 E] 580
Ballavdas Agarwala v. J. C. Chakravarty, [1962] 3 S.C.R.
739 and Nazir Ahmad v. King Emperor, 63 I.A.
372 as 381, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 8 of 1966.
Appeal by special leave from the judgment and
order dated April 29, 1965 of the Punjab High Court, Circuit Bench at Delhi in
Criminal Appeal No. 164-D of 1962.
Bishan Narain, K. K. Raizada and A. G.
Ratnaparkhi, for the appellant.
Sardar Bahadur and Yougindra Khushalani, for
respondent No. 1.
R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by
Ramaswami, J. On August 29, 1960 Shri Sham Sundar Mathur, Municipal Prosecutor
of the Delhi Municipal Corporation filed a complaint in the court of Magistrate
First Class against the respondent, Jagdishlal under S. 7 read with S. 16 of
the Prevention of Food Adulteration Act, 1954 (37 of 1954). In the said
complain Shri Sham Sundar Mathur said that lie was competent to file the
complaint under S. 20 of the aforesaid Act in accordance with a resolution
passed by the Corporation in its meeting held on December 23, 1968.
By his order dated April 30, 1962 the learned
Magistrate acquitted the respondent. The Delhi Municipal Corporation made an
application to the High Court asking for special leave under s. 417 of the Code
of Criminal Procedure to appeal against the order of acquittal. The application
was -ranted on September 3, 1962. When the appeal came up for hearing a
preliminary objection was raised on of the respondent that the only person
competent to file the appeal was the complainant, Shri Sham Sundar Mathur. But the
leave application was not filed by him and, therefore, the Municipal
Corporation was not competent to prosecute the appeal. It was contended that
only the complainant was competent to present an application for special leave
under S. 417(3) of the Code of Criminal Procedure. As the complainant in this
case was Shri Sham Sundar Mathur the appeal could not be filed by the Delhi
Municipal Corporation. The High Court upheld the preliminary objection of the
respondent and dismissed the appeal by its order dated April 29, 1965. This
appeal is brought by special leave on behalf of the Delhi Municipal Corporation
against the judgment of the High Court dated April 29, 1965 in Cr. Ar. No.
163-D of 1962.
Section 20 of the Prevention of Food
Adulteration Act, 1954 states :
581 " (1) No prosecution for an offence
under this Act shall be instituted except by, or with the written consent of,
the Central Government or the State Government or a local authority or a person
authorised in this behalf, by general or special order, by the Central
Government or the State Government or a local authority :
Provided that a prosecution for an offence
under this Act may be instituted by a purchaser referred to in section 12, if
he produces in court a copy of the report of the public analyst along with the
complaint.
Section 417, sub-ss. (1), (2) and (3) of the
Code of Criminal Procedure after its amendment by Act 26 of 1955 provide :
" (1) Subject to the provisions of
sub-section (5), the State Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from an original or appellate
order of acquittal passed by any Court other than a High Court.
(2)If such an order of acquittal is passed in
any case in which the offence has been investigated by the Delhi Special Police
Establishment constituted under the Delhi Special Police Establishment Act,
1946 (XXXV of 1946), the Central Government may also direct the Public Prosecutor
to present an appeal to the High Court from the order of acquittal.
(3)If such an order of acquittal is passed in
any case instituted upon complaint and the High Court, on an application made
to it by the complainant in this behalf, grants special leave to appeal from
the order of acquittal, the complainant may present such an appeal to the High
Court.
The principal question to be determined is
whether the complaint dated August 29, 1960 was instituted by the Delhi
Municipal Corporation. It is argued on behalf of the respondent that the
complaint petition was not made and signed by the person competent under the
Delhi Municipal Corporation Act, 1957 to exercise powers of the, Corporation in
the matter of institution of legal proceedings. In our opinion there is
substance in this contention. The only provision under the Delhi Municipal
Corporation Act, 1965 which confers power to institute legal proceedings is s.
476(1) (h) which states 582 "(1) The
Commissioner may(h)institute and prosecute any suit or other legal proceeding,
or with the approval of the Standing Committee withdraw from or compromise any
suit or any claim for any sum not exceeding five hundred rupees which has been
instituted or made in the name of the Corporation or of the Commissioner;
It is clear that the phrase "other legal
proceedings" includes the power to institute a complaint before a
Magistrate and hence it is the Commissioner alone who could exercise the power
as there is no other provision in the Act which confers such power on anyone
else.
This view is supported by the decision of
this Court in Bailavdas Agarwala v. J. C.
Chakravarty(1) in which it was pointed out
that a complaint under The Calcutta Municipal Act, 1923 as applied to the
Municipality of Howrah, would only be filed by the au thorities mentioned
therein and not by an ordinary citizen. Section 537 of that Act provided that
the Commissioners may institute, defend or withdraw from legal proceedings
under the Act; under s. 12 the Commissioners can delegate their functions to
the Chairman, and the Chairman may in his turn delegate the same to the
Vice-Chairman or to any municipal officer. It was observed in that case that
the machinery provided in the Act must be followed in enforcing its provisions,
and it was against the tenor and scheme of the Act to hold that s. 537 was
merely enabling in nature. The principle invoked in that case was that adopted
by the Privy Council in Nazir Ahmad v. King Emperor (2) viz. : that where a
power is given to do a certain thing in a certain way, the thing must be done
in that way or not at all. It was, therefore, held that if a legal proceeding
was instituted under the Municipal Act in question, it must be done in
accordance with the provisions of the Act and not otherwise.
But the question presented for determination
in the present appeal is somewhat different.
Under s. 20 of Act 37 of 1954 the prosecution
for the offence may be instituted either (a) by the Central Government or the
State Government or a local authority or (b) a person authorised in that behalf
by general or special order by the Central Government or the State Government
or a local authority.
Section 2(vii) of Act 37 of 1954 defines a
"local authority" to mean "in the case of a local area which is
a (1) [1962] 3 S.C.R. 739.
(2) 63 I.A. 372 at 381.
583 pality, the municipal board or municipal
corporation." A complaint under s. 20 of the Act may, therefore, be
instituted either by the Municipal Corporation or by a person authorised in its
behalf by general or special order by the Municipal Corporation. The Resolution
of the Delhi Municipal Corporation dated December 23, 1958 reads as follows
"Subject : Authorising the Municipal Prosecutor and the Assistant
Municipal Prosecutor to launch Prosecutions under section 20 of the Prevention
of Food Adulteration Act, 1954.
The area under the jurisdiction of the Delhi
Municipal Corporation has been declared a "local area" under s.
2(vii) of the Prevention of Food Adulteration Act vide Chief Commissioner's
Notification No, F.32(30) 58-M and PH(i) dated 13th June, 1958 published in the
Delhi Gazette (Part IV) dated 26th June, 1959 and consequently the Municipal
Corporation of Delhi is the Local Authority for that area within the meaning of
section 2(vii) of the said Act.
Section 20 of the Prevention of Food Adulteration
Act, 1954 contemplates the appointment of persons who shall be authorised to
institute prosecutions under this Act by the Local Authority concerned.
Shri Sham Sundar Mathur, M.A., LL.B.,
Municipal Prosecutor and Shri Bankey Behari Tawkley, Assistant Municipal
Prosecutor were authorised by the erstwhile Delhi Municipal Committee tinder
the above section." "Shri Vijay Kumar Malhotra moved the following
resolution, which was seconded by Shri Prem Sagar Gupta Resolved that the
recommendations of the Commissioner vide letter No. 139/Legal/58 dated 1-12-58
regarding authorising the Municipal prosecutor and the Assistant Municipal
Prosecutor to launch prosecutions under section 20 of the Prevention of Food
Adulteration Act, 1954 be approved.
The resolution was carried." In the
present case Shri Sham Sundar Mathur, Municipal Prosecutor filed the complaint
under s. 20 of Act 37 of 1954 under L14Sup.C.I/69-8 584 the authority given to
him by the resolution of the Municipal Corporation. Since the Municipal
Corporation, Delhi, is a local authority within the meaning of S. 20 of Act 37
of 1954 and since it conferred authority on the Municipal Prosecutor the
complaint was properly filed by Sham Sundar Mathur. The question is whether the
Delhi Municipal Corporation or Shri Mathur was the complainant within the
-meaning of S. 417(3) of the Code of Criminal Procedure. It was argued on
behalf of the respondent that the complainant was Shri Sham Sundar Mathur, the
Municipal Prosecutor and the Delhi Municipal Corporation was not competent to
make an application for special leave under s.
417(3), Cr. P.C. We are unable to accept this
argument as correct. It is true that Shri Sham Sundar Mathur filed the
complaint petition on August 29, 1960. But in filing the complaint Shri Mathur
was not acting on his own personal behalf but was acting as an agent authorised
by the Delhi Municipal Corporation to file the complaint. It must, therefore,
be deemed in the contemplation of law that the Delhi Municipal Corporation was
the complainant in the case.
The maxim qui per alium facit per seipsum
facere videtur (he who does an act through another is Jeemed in law to do it
himself) illustrates the general doctrine on which the law relating to the
rights and liabilities of principal and agent depends. We are, therefore, of
opinion that Shri Mathur was only acting in a representative capacity and that
the Delhi Municipal Corporation was the complainant within the meaning of S.
417(3) of the Code of Criminal Procedure and the petition for special leave and
the appeal petition were properly instituted by the Delhi Municipal
Corporation. For these reasons we allow the appeal, set aside the judgment of
the High Court dated April 9, 1965 and direct that the appeal should be
remanded to the High Court for being heard afresh and disposed of according to
law.
G.C. Appeal allowed.
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